On August 2, 2002, upon his release from imprisonment, A. registered with PSP as a sex offender as required by Megan's Law II. In early 2007, Gehris's exchanges included requests to meet younger girls 11– to 13–years old that the PSP officer might know and that he fantasized about having sex with the two girls. This Court overruled PSP's preliminary objections to the Petition by memorandum opinion and order filed March 12, 2013.
PSP claims that the language of the former subsection (b)(1) is clear and that A. is subject to its provisions because he is “an individual with two or more convictions of any of the offenses set forth in subsection (a).” PSP asserts that the acts underlying the crimes are of no consequence; if the defendant is convicted of two or more crimes set forth in subsection (a)(1), he or she is a lifetime registrant under subsection (b)(1). If the guilty plea is considered to be one conviction for this purpose, then under that provision, A. is only required to register as a sex offender for ten years under the former subsection (a)(1), but if they are considered to be two convictions, he would be subject to the lifetime registration requirement of the former subsection (b)(1). The female was actually a PSP officer trained to pose as a teenager to collect evidence and investigate sexual predators.
Before the Court are the cross-motions for summary judgment of A. and the Pennsylvania State Police (PSP) filed pursuant to Pa. Because the age of consent in Pennsylvania is 16, the consensual sex between those individuals was not a crime. The trial court, however, did not rule on the post-trial motion within the time required by law, resulting in a deemed denial. By operation of Section 9799.41 of the Sentencing Code, 42 Pa. The subject matter of these expired provisions are now found in the Sex Offender Registration and Notification Act (SORNA), 42 Pa.
Sue Ann Unger, Senior Deputy Attorney General, Philadelphia, for respondent. S., who was 21 years old at the time of the incident, and a 16–year–old female minor who engaged in consensual sexual relations. The Superior Court, however, disagreed with the trial court on the period of registration. The Commonwealth filed a post-trial motion, challenging various aspects of the sentencing court's sentence, including Merolla's registration classification. Sections 9791 through 9799.9 of the Sentencing Code, 42 Pa. S.'s criminal conviction and his initial registration with PSP in August 2002, were commonly referred to as “Megan's Law II.” The original version of “Megan's Law” was held to be unconstitutional in Commonwealth v. 285, 733 A.2d 593 (1999); however, in Commonwealth v. 487, 832 A.2d 962 (2003), the Supreme Court held that Megan's Law II was constitutional. § 9799.41, enacted on December 20, 2011, certain sections of the Sentencing Code, including Section 9795.1, expired on December 20, 2012.
In my view, this reflects a considered determination by the legislature that, in order to protect the safety and general welfare of the public, the frequency with which a convicted defendant is determined to have engaged in certain types of prohibited conduct with children is a particularly important factor in determining whether he or she should be subject to lifetime registration. This reveals an unfortunate lack of specificity in potential application of Section 9795.1. The Chief Justice then set out his case as to why the registration requirement in the law encompasses a recidivist philosophy and thus must be read in light of that philosophy: We would therefore hold that a defendant convicted of “two or more” subsection (a) offenses are subject to the lesser sanction of the ten-year registration requirement so long as it is clear that the offenses were part of the same course of criminal conduct. The Superior Court rejected this argument, relying, as it did in Gehris, on its binding precedent in Merolla. The Supreme Court has since docketed the appeal (No. Based on my review of the docket, it appears that all of the parties' briefs have been filed and the matter has been scheduled for oral argument before the Supreme Court on March 11, 2014, in Philadelphia. This, however, is the same argument raised by the appellant and rejected by the Pennsylvania Superior Court in its reported decision in Merolla. But while it may be a reach to pronounce the law on this issue settled finally, particularly with Mielnicki pending before the Pennsylvania Supreme Court, it is settled at least in the Superior Court, which has had repeated opportunities to address it and is more likely than this Court to see the issue in the future. In the OISA, however, Justice Todd recognized concerns expressed by Chief Justice Castile in the OISR, suggesting there may be a consensus among the justices on the issue of whether the lifetime registration requirement of Section 9795.1(b)(1) of the Sentencing Code applies where there are multiple convictions for but a single act of criminal misconduct. The Statutory Construction Act commands us to construe statutory language in a manner that is consistent with legislative intent. Sometimes, and perhaps most times, a determination of whether an offender has engaged in multiple acts of criminal misconduct is apparent by the number of convictions. to cause her to photograph herself, would support a charge under Section 6312(b) of the Crimes Code. could prove by a preponderance of the evidence that his convictions arose from a single act of misconduct, he would be entitled to the relief he seeks in this lawsuit. It contrasted this statutory language with that found in what is commonly referred to as Pennsylvania's Three Strikes statute, which imposes enhanced criminal penalties “[w]here the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions.” 42 Pa. In contrast, the purpose of Megan's Law II is not to curb recidivism, but to protect the public. The court opined: The sequence of events ․—first offense, first conviction, first sentencing, second offense, second conviction, second sentencing—does not apply to Megan's Law II based on a literal reading of the statute. ––––, 54 A .3d 862 (2012), on allowance of appeal from an unreported memorandum decision of a three-judge panel of the Pennsylvania Superior Court, the Pennsylvania Supreme Court considered the question of whether a man (Gehris) who pled guilty to two subsection (a) offenses from a single criminal information, arising out of conduct that occurred over a four-month period, should be considered a lifetime registrant under the law. pled guilty to a violation of Section 6312(b) of the Crimes Code, which, relevant to the matter now before us, makes it unlawful for “[a]ny person [to] cause [ ] ․ a child under the age of 18 years to engage in a prohibited sexual act or in the simulation of such act ․ if such person knows, has reason to know or intends that such act may be photographed, videotaped, depicted on computer or filmed.” A. also pled guilty to a violation Section 6318(a)(5) of the Crimes Code, which makes it unlawful for a person to “intentionally ․ contact ․ a minor ․ for the purpose of engaging in an activity prohibited under ․ [S]ection 6312 (relating to sexual abuse of children).” Thus, the elements of these two predicate offenses overlap in such a way that an individual may commit both offenses by engaging in a single act of contacting a minor for the purpose of causing the minor to photograph herself engaging in a real or simulated sexual act. violated Section 6312(b) of the Crimes Code by causing photographs to be taken that would be considered child pornography. Moreover, mandamus is proper to compel the performance of official duties whose scope is defined as a result of the mandamus action litigation. Thus, it is irrelevant that Merolla had not been sentenced for his first offense before the commission of his second crime. The Pennsylvania Supreme Court recently wrestled with the interpretation of subsection (b)(1) with regard to convictions for more than one predicate offense, although it ultimately provided no binding precedent. The trial court and the Pennsylvania Superior Court held that the statutory language was unambiguous and concluded that Gehris met the definition of a lifetime offender based on his conviction of two subsection (a) offenses. ultimately pled guilty to only two pertinent counts. Also, an individual cannot be guilty of a violation of Section 6318(a)(5) unless he is attempting to commit a violation of Section 6312. contends that both of his convictions relate to the single act of contacting a minor, T., for the purpose of causing the minor to photograph herself engaging in a sexual act. Because a violation of Section 6318(a)(5) of the Crimes Code occurs when one contacts a minor for the purpose of engaging in activity prohibited under Section 6312, the act of contacting T. for the purpose of generating child pornography simultaneously and automatically constituted violations of two predicate offenses for purposes of Megan's Law II registration. Thus, one may engage in one of those offenses without automatically and simultaneously engaging in the other offense. pled guilty to one count each of violating Sections 6312(b) and 6318(a)(5) of the Crimes Code, which are each listed offenses requiring a ten-year registration period under the former Section 9795.1(a)(1) of the Sentencing Code, the former Section 9795.1(b)(1) required a lifetime registration because A. was “an individual with two or more convictions of ․ the offenses set forth in subsection (a).” Based on PSP's refusal to remove his name from the registry, A. filed the instant Petition in this Court and the parties filed cross-petitions for summary relief. He contends that the enhancement provision of the former Section 9795.1(b)(1), requiring lifetime registration for multiple offenses, only applies to those convicted of separate acts of misconduct that lead to more than one criminal conviction, i.e., repeat offenders and recidivists. He asserts that his guilty pleas to the two enumerated offenses in the former Section 9795.1(a)(1) should be treated as a single conviction and not as two or more convictions for purposes of the former subsection (b)(1). He asserts that to hold otherwise would violate the Equal Protection Clause because disparate registration classifications would emerge for similarly-situated defendants based solely on the charging decisions made by prosecutors. S.'s motion and in support of its own, PSP argues that it properly designated A. as a lifetime registrant under the former Section 9795.1(b)(1). is such a defendant, PSP contends that he cannot show a clear right to have his lifetime registrant designation changed and is, therefore, not entitled to mandamus relief. S.'s guilty pleas to two separate crimes involving photographs of the same minor were one or two convictions for the purpose of the sex offender registration requirements contained in the former Section 9795.1 of the Sentencing Code. ––––, 54 A.3d 862 (2012), a defendant, Patrick Gehris, began corresponding with what he believed to be a 19–year–old female in an internet chat room in October 2006. and PSP filed a stipulation that, in light of the documents already filed as exhibits in the answer, new matter and reply to the new matter, they did not need to take any discovery and anticipated filing the instant cross-motions for summary relief.9. As the United States Supreme Court recognized in Moore v. argues that he is entitled to summary relief because the offenses to which he pled guilty stemmed from a single criminal act, criminal episode or course of conduct, i.e., causing the photographing of a minor in a sexual act and only require a ten-year registration under the former Section 9795.1(a)(1). claims that the former Section 9795.1(b)(1) should not apply to individuals who only engage in a single act of misconduct that, by statute and prosecutorial discretion, results in multiple criminal charges and convictions. argues that it is improper for PSP to classify him as a lifetime registrant. Super.2006), in which the Superior Court upheld a trial court's determination that lifetime registration was required under the former Section 9795.1(b)(1) for a defendant who pled nolo contendere to two counts of indecent assault and one count of statutory sexual assault stemming from his improper fondling of three girls under 16 years of age. To the extent that Merolla could apply to the instant case, it is factually distinguishable in that it involved convictions for crimes committed on multiple victims during distinct periods of time and criminal episodes. Department of Transportation, 630 A.2d 524, 525 (Pa. See Section 1922 of the Statutory Construction Act, 1 Pa. The mere fact that the additional statutory offenses involve additional issues of law or fact is not sufficient to create a separate criminal episode since the logical relationship test does not require ‘an absolute identity of factual backgrounds.’* * *The temporal relationship between criminal acts will be a factor which frequently determines whether the acts are ‘logically related.’ However, the definition of a ‘single criminal episode’ should not be limited to acts which are immediately connected in time.
BEFORE: DAN PELLEGRINI, President Judge, and BERNARD L. On appeal, the Superior Court agreed with the Commonwealth, holding that Merolla was required to register under Megan's Law for the rest of his life. Section 9795.1(b)(1), the Superior Court noted, includes no similar language that would limit its application to situations where there is a previous conviction.